Most employers know that the federal Americans with Disabilities Act (ADA) protects recovered drug addicts, but not current illegal drug users. But what if an employee has only just finished drug rehab and has been “clean” for 30 days? Is the employee a recovered drug addict when they have used illegal drugs that recently? That’s what one employee tried to claim when he sought rehire after being terminated for failing a drug test. The day after he completed rehab—30 days after last using drugs—he asked for his old job back. When his employer refused he sued, claiming he had a disability—past drug addiction—that was protected by the ADA. The court didn’t buy it. While the court declined to create a bright line rule as to how many days of sobriety an employee must accumulate before being protected, it concluded that this employee’s past drug use was too recent to consider him a recovered drug addict, and rejected his ADA claim (Mauerhan v. Wagner Corp., 10th Cir, April 2011).
Tips: Under the ADA a current user of illegal drugs is not considered to be a protected disabled individual, but someone who has a past record of drug use (a recovered addict) is protected. As this case illustrates, exactly when in their recovery an individual becomes protected under the ADA can be hard to tell. If this kind of situation arises, your Vigilant staff representative can help you decide how to proceed.
